U.S. v. Sutton

• Decision Date: 22 July 1997
• Docket Number: Crim. No. 96-469(WGB).
• Citation: 973 F.Supp. 488
• Parties: UNITED STATES of America, v. Julio Enrique SUTTON, Defendant.
• Court: U.S. District Court — District of New Jersey

973 F.Supp. 488

UNITED STATES of America, v. Julio Enrique SUTTON, Defendant.

Crim. No. 96-469(WGB).

United States District Court, D. New Jersey.

July 22, 1997.

Joan Thomas, Asst. U.S. Atty., United States Attorney's Office, Newark, NJ, for Plaintiff.

Patricia D.Codey, Assistant Federal Public Defender, District of New Jersey, Newark, NJ, for Defendant.

OPINION

BASSLER, District Judge:

I. BACKGROUND

This matter is before the Court for the sentencing of Julio Enrique Sutton.

Mr. Sutton pled guilty to one count of importing heroin in violation of 21 U.S.C. §§ 952(a) and 960(a)(1). These statutes carry a mandatory minimum of 60 months imprisonment.

During the summer of 1996, Mr. Sutton obtained a passport and airline tickets to Cali, Columbia in order to obtain heroin to smuggle into the United States. Mr. Sutton expected to be paid $16.50 for each gram of heroin he smuggled. (Presentence Report ¶ 8).

Mr. Sutton returned to Newark International Airport on August 4, 1996 from Cali, Columbia. An X-ray examination of Mr. Sutton revealed the presence of foreign substances in his digestive tract. During the next two days, Mr. Sutton excreted 75 pellets of heroin containing 580.8 grams of heroin. (PSR 8, 12).

The Presentence Report calculates Mr. Sutton's total offense level to be 23 and his criminal history category to be II, resulting in a sentencing range of 60 to 63 months. For the reasons set forth below, the Court calculates Mr. Sutton's total offense level to be 25 and his criminal history category to be II, resulting in a sentencing range of 63 to 78 months.

II. DISCUSSION

A. Base Offense Level

The parties agree that Mr. Sutton imported between 400 and 700 grams of heroin into the country, giving him a base offense level of 28. U.S.S.G. § 2D1.1(c)(6).

B. Minor Role Adjustment

The plea agreement entered into in this case stipulates that Mr. Sutton played a minor role in the activities surrounding the importation of heroin into the country and suggests a two-point downward adjustment.

The Court, of course, is not bound by the parties' plea agreement. United States v. Forbes, 888 F.2d 752, 754 (11th Cir.1989) (court not bound to find that defendant played a minor role as stipulated); U.S.S.G. § 6B1.4(d).

Granting a downward adjustment on the facts of this case is contrary to Third Circuit law, and the Court, therefore, declines to do so. Similar contentions have been flatly rejected by the Third Circuit at least twice. See United States v. Hernandez, 107 F.3d 864 (3d Cir.1997) ("Since the defendant's offense level was determined solely by his own conduct as a courier, the district court did not err in refusing to further reduce his role based upon his relationship to other participants...." Since Hernandez imported all 680 grams involved, he can hardly be considered a "minor participant") (affirming Bassler, J.); United States v. Mendoza-Rodriguez, 107 F.3d 9 (3d Cir. 1997) ("... it is impossible for the defendant to have been a minor participant in the offense for which he was charged, because he was the only participant in the offense for which he was charged. He can not have been a minor participant in his own possession of illicit drugs"); United States v. Uriostegui-Estrada, 86 F.3d 87, 90 (7th Cir.1996) (a drug courier who "was sentenced only for the amount of drugs he carried" rather than "as a participant in a larger enterprise" played a "significant rather than a minor role in that offense"). Here, as in the above-cited cases, Mr. Sutton is not charged for his role in some larger offense; rather, he is charged for importing heroin that he himself actually imported into the United States. His role in that offense is not minor. Therefore, he is not entitled to a two-point downward adjustment for minor role.

C. Acceptance of Responsibility

The Court sees no basis for disputing the additional three point downward adjustment for Mr. Sutton's acceptance of responsibility pursuant to U.S.S.G. §§ 3E1.1(a) & (b).

Mr. Sutton's total offense level, after adjustments therefore, is 25.

D. Criminal History Category

The Probation Department initially calculated Mr. Sutton's criminal history category to be III, based on three criminal history points. Mr. Sutton objected, arguing that one of the points had been improperly calculated. The Probation Department subsequently revised its recommendation to reflect a criminal history category of II. Mr. Sutton has voiced no further objection to the Probation Department's revised recommendation.

The Court's review of the record confirms that Mr. Sutton's criminal history points total 2, placing him in criminal history category II.

E. Shock Incarceration Program. Bureau of Prisons Designation and Bureau of Prisons Drug Treatment Program

Mr. Sutton also asks this Court to recommend that he be placed in the "Shock Incarceration Program," and that the Court recommend incarceration in a New York or New Jersey prison that has an intensive drug treatment program.

The Shock Incarceration Program is governed by 18 U.S.C. § 4046, which provides:

(a) The Bureau of Prisons may place in a shock incarceration program any person who is sentenced to a term of imprisonment of more than 12, but not more than 30, months, if such person consents to that placement.

(b) For such initial portion of the term of imprisonment as the Bureau of Prisons may determine, not to exceed 6 months, an inmate in the shock incarceration program shall be required to —

(1) adhere to a highly regimented schedule that provides the strict discipline, physical training, hard labor, drill, and ceremony characteristic of military basic training; and

(2) participate in appropriate job training and educational programs (including literacy programs) and drug, alcohol, and other counseling programs.

(c) An inmate who in the judgment of the Director of the Bureau of Prisons has successfully completed the required period of shock incarceration shall remain in the custody of the Bureau for such period (not to exceed the remainder of the prison term otherwise required by law to be served by that inmate), and under such conditions, as the Bureau deems appropriate.

As the language of the statute makes clear, the decision whether to include an inmate in the shock incarceration program is the Bureau of Prison's to make. The Court does note, however, that Mr. Sutton faces at least sixty months of incarceration due to the mandatory minimum sentence provisions of 21 U.S.C. §§ 952(a) and 960(a)(1). It would appear, therefore, that he is not eligible for the shock incarceration program, which is available only for defendants sentenced to more than twelve but less than or equal to thirty months.

As for Mr. Sutton's other requests, given Mr. Sutton's history with controlled substances, and the Government's lack of objection, the Court recommends to the Bureau of Prisons that Mr. Sutton receive appropriate drug treatment while incarcerated. The Court further recommends that Mr. Sutton should be incarcerated in a facility near his family in New Jersey.

F. Downward Departure for Conditions at the Union County Jail

The Court next addresses the Defendant's contention that he is entitled to a downward departure for the conditions at the Union County Jail, where he has been housed since August 4, 1996.

As the Defendant properly notes, whether allegedly deplorable jail conditions during pre-trial confinement warrant a downward departure is the subject of some controversy in this district. Judge Lifland, in United States v. Navarro, Crim. No. 93-588-14(JCL), and Judge Debevoise, in United States v. Insuasti, Crim. No. 96-73-3(DRD), both granted a downward departure because the Sentencing Commission did not adequately take into consideration the possibility of substandard pre-trial confinement when formulating the sentencing guidelines. Judge Debevoise further reasoned that granting a downward departure would have the salutory effect of "emphasizing to government officials the necessity of addressing conditions in the Union County Jail." (Cody Cert. Ex. C, United States v. Insuasti, Criminal Judgment).¹

This Court, in an oral opinion issued in United States v. Chestnut, 95 Crim. 201(WGB), held that a downward departure based on substandard conditions was not permissible under the Sentencing Guidelines. The Court, in reaching this conclusion, reasoned that a writ of habeas corpus or a civil action filed pursuant to 42 U.S.C. § 1983 were the more appropriate avenues for addressing the jail's conditions. The Court also noted that, even if it had the power to depart for deplorable conditions, it would not have done so in that case because Mr. Chestnut had not produced sufficient evidence regarding the allegedly poor conditions at the Union County Jail.

The Court now revisits this issue on a more complete record² and with the benefit of the Third Circuit's jurisprudence interpreting Koon v. United States, ___ U.S. ___, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the Supreme Court's seminal case regarding a district court's authority to depart under the Sentencing Guidelines.

A sentencing court may depart from the applicable guideline range only if it "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the [G]uidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b).

The universe of potential factors to be considered by a sentencing court in determining whether to depart downward is as wide and varied as human nature itself. Koon divides this infinite universe into four categories for purposes of determining whether departure is appropriate pursuant to 18 U.S.C. § 3553(b): (1) forbidden factors³; (2) encouraged factors; (3) discouraged factors; and (4) factors that are unmentioned in the Guidelines. Koon, ___ U.S. at ___, 116 S.Ct. at 2045; United States...