United States v. Aidoo

• Decision Date: 29 February 2012
• Docket Number: No. 10–4752.,10–4752.
• Citation: 670 F.3d 600
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Frank AIDOO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

670 F.3d 600

UNITED STATES of America, Plaintiff–Appellee,

v.Frank AIDOO, Defendant–Appellant.

No. 10–4752.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 27, 2011.Decided: Feb. 29, 2012.

ARGUED: Brendan Abell Hurson, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Mushtaq Zakir Gunja, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Robert R. Harding, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before TRAXLER, Chief Judge, and GREGORY and KEENAN, Circuit Judges.

Affirmed by published opinion. Chief Judge TRAXLER wrote the majority opinion, in which Judge KEENAN joined. Judge GREGORY wrote a dissenting opinion.

OPINION

TRAXLER, Chief Judge:

Frank Aidoo pleaded guilty to unlawful importation of heroin in violation of 21 U.S.C. § 952(a). At sentencing, the district court concluded that Aidoo had not been truthful and therefore was not eligible for sentencing under the “safety valve” exception to the otherwise-applicable statutory minimum sentence. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a). The court sentenced Aidoo to 60 months' imprisonment, the minimum sentence permitted under the statute. Aidoo appeals, and we affirm.

I.

Customs officials had intelligence suggesting that Aidoo, a native and resident of Ghana and a citizen of the Netherlands, was involved in drug smuggling. After learning that Aidoo had paid cash for a ticket just a few days before he boarded a flight from Ghana, the officers stopped Aidoo when he landed at Baltimore–Washington International Airport on March 27, 2009. Aidoo initially told the officers that he was in the United States to visit his nephew “Evans Twum,” the name listed on Aidoo's customs declaration form. When the officers called Twum at the number provided by Aidoo, the person answering the phone seemed very nervous and hung up. The officers called back, and the person answering the phone identified himself as Michael Jackson and again hung up. Aidoo finally admitted that he had ingested heroin, and he eventually passed pellets containing 998.4 grams of heroin. He was indicted on one count of importing heroin and one count of possession with intent to distribute heroin. Hoping to qualify for sentencing under the safety valve, Aidoo met with the government in a proffer session. Aidoo told the government that this incident was the first time he had ever smuggled heroin and that he had been paid $10,000 by a man Aidoo could identify only as “Kofi.” Aidoo did not say who his contact in the United States was to be, and he identified no one in the United States as being involved in the scheme. J.A. 32–33, 130–31. Although Aidoo had provided a phone number for Evans Twum when he was arrested, he refused to implicate Twum in the smuggling. The government showed Aidoo his passport, with dozens of stamps showing numerous trips out of Ghana, and told Aidoo that the passport appeared to be that of an international drug smuggler. Aidoo explained that he traveled to Europe and the United States to buy clothes at outdoor bazaars and department stores. Aidoo said he brought the clothes back in his suitcase and then resold the clothes in Ghana. J.A. 31–32, 55. The government informed Aidoo at the proffer session that it did not believe he was being truthful and that he did not meet the requirements of the safety valve.

Aidoo eventually pleaded guilty to a single count of importing heroin. The plea agreement included a stipulation to facts that the government “would prove beyond a reasonable doubt,” J.A. 23, including a statement that “[i]ntelligence obtained [by Customs officials] showed that Aidoo had been involved in heroin smuggling activities. Aidoo had traveled to an address in New York utilized by Nigerian heroin smugglers who were apprehended at John F. Kennedy Airport and in Boston.” J.A. 24. The plea agreement noted the government's opposition to application of the safety valve but preserved Aidoo's right to argue to the district court that he qualified for sentencing under the safety valve and to appeal should the court reject his safety-valve argument.

The presentence report (“PSR”) prepared in advance of sentencing stated that Aidoo “appears to meet the criteria set for imposition of a sentence ... without regard to any statutory minimum sentence.” J.A. 104. Applying a three-level acceptance-of-responsibility reduction and the two-level reduction provided for defendants who meet the safety-valve requirements, see U.S.S.G. § 2D1.1(b)(11), the PSR calculated that Aidoo's advisory sentencing range was 57–71 months.

After receiving the PSR, counsel for Aidoo submitted to the court a letter outlining his view of sentencing. Counsel contended that Aidoo had satisfied all of the safety-valve requirements and noted that the government had not objected to the finding in the PSR that Aidoo was eligible for the safety-valve. In the letter, counsel asserted that several of Aidoo's international trips had been for the purpose of obtaining medical treatment that was unavailable to Aidoo in Ghana. The day after Aidoo's letter was filed, the government filed a sentencing memorandum objecting to application of the safety valve because Aidoo had not been truthful and specifying its reasons for believing Aidoo to be ineligible.

At the sentencing hearing, the government explained its opposition to application of the safety valve, reiterating the points made in its sentencing memorandum. The government stated that Aidoo's claim that the March 27 incident was the first time he had smuggled heroin was inconsistent with the information stipulated to in the plea agreement; that the large quantity of heroin Aidoo had ingested (just under a kilogram) suggested that he was an experienced smuggler; that Aidoo had never identified his contact in the United States; and that his international-clothes-buying-and-reselling story was not believable. The government noted that while counsel for Aidoo had stated in his sentencing letter that some of Aidoo's international trips had been to obtain medical treatment, Aidoo himself had not mentioned any such trips during the proffer session.

Counsel for Aidoo asserted that Aidoo had been completely truthful about the conduct that led to his arrest and was entitled to sentencing under the safety valve. Although counsel presented no evidence to support Aidoo's story, counsel did represent to the court that counsel had read certain Congressional testimony and various newspaper articles indicating that drug mules ingest, on average, just under a kilogram of drugs. Counsel also noted that Aidoo had medical records in his possession when he was arrested that showed he had received medical treatment in Belgium at least four times. Counsel argued that the stipulation in the plea agreement about Aidoo's prior activities was not an admission that Aidoo had smuggled previously, but merely reflected his agreement that Aidoo had previously listed an address that at some point was associated with drug smugglers.¹ When asked by the district court how Aidoo had paid for all of his international travel, counsel stated he had spoken to the pastor of Aidoo's church in Ghana and that the church had provided some financial assistance. Counsel argued that the government was free to disbelieve Aidoo's story about his clothes-buying trips, but that the prior trips were not part of a common scheme or plan with the offense of conviction and that Aidoo was not required to explain those trips to qualify for the safety valve.

The district court concluded that Aidoo was not entitled to sentencing under the safety valve because of the “inherent implausibility” of Aidoo's explanation of his international travel. J.A. 53. The court explained:

[T]hat was not a statement of some kind of wholesale business that he was arranging shipments back on a freighter or a bulk shipment, or that he was buying from factories. It's just simply implausible that a person can go to a department store in Brussels or some other city, buy some garments, put them in the suitcase, go back to Ghana, and sell them for a price that covers the expenses of the trips.

All the thousands of dollars for international travel and staying in hotels is simply implausible, and, for that reason, I conclude that Mr. Aidoo is not eligible for the safety valve.

J.A. 53. Counsel for Aidoo then explained to the court that Aidoo in his proffer had talked primarily about buying clothes at outdoor bazaars and fairs and had mentioned only one department store. The district court accepted that proffer but explained that it did not change its conclusion: “[T]he signal event [is] that the clothes go into a suitcase and go back to Ghana, so we don't have anything that could be characterized as a wholesale operation. So even accepting that proffer, my view is the same.” J.A. 55. The district court thus concluded that Aidoo was subject to the five-year mandatory minimum sentence, and the court sentenced him to 60 months' imprisonment.

II.

A.

The safety-valve statute requires sentencing courts to disregard any statutory mandatory minimum sentence if the defendant establishes that: (1) he does not have more than one criminal history point; (2) he did not use or threaten violence or possess a firearm or other dangerous weapon; (3) the offense did not result in death or serious bodily injury; (4) he was not an organizer, leader, manager, or supervisor of others; and (5) he truthfully provided the government with all evidence and information about the offense and related offenses. See 18 U.S.C. § 3553(f).

Under the statute, the government must be given an opportunity to make a recommendation, but the statute requires the district court to independently determine whether the requirements have...