U.S. v. Warren, 98-6488

• Decision Date: 21 July 1999
• Docket Number: No. 98-6488,98-6488
• Citation: 186 F.3d 358
• Parties: (3rd Cir. 1999) UNITED STATES OF AMERICA, v. JOSEPH B. WARREN, Appellant
• Court: U.S. Court of Appeals — Third Circuit

Page 358

186 F.3d 358 (3rd Cir. 1999)

UNITED STATES OF AMERICA, v. JOSEPH B. WARREN, Appellant

No. 98-6488

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued May 19, 1999

Decided July 21, 1999

Appeal from the United States District Court for the District of New Jersey (Criminal No. 98-cr-00416) District Judge: Honorable Alfred J. Lechner, Jr. [Copyrighted Material Omitted] John H. Yauch, Esq. (ARGUED), Assistant Federal Public Defender, Office of the Federal Public Defender, 972 Broad Street, Newark, NJ 07102, Attorney for Appellant

Shawna H. Yen, Esq. (ARGUED), George S. Leone, Esq., Assistant United States Attorneys, 970 Broad Street, Newark, NJ 07102-2515, Attorneys for Appellee

Before: BECKER, Chief Judge, RENDELL, and ROSENN Circuit Judges,

OPINION OF THE COURT

RENDELL, Circuit Judge.

In this sentencing appeal, we are presented with the dilemma of sentencing a courier who brought a large quantity of drugs into the country but who, from the very inception of the transaction, was cooperating with the authorities, to whom he revealed his plans. The District Court rejected Warren's plea for special probation and, instead, departed upward to the maximum statutory penalty. Warren challenges the adequacy of notice of the District Court's upward departure and the sufficiency of the evidence supporting the grounds given for the upward departure, as well as the imposition of restrictions on his travel outside of the United States as a special condition of probation.¹ We will reverse and remand for resentencing.

I. Factual Background

Prior to his involvement in this matter, Joseph B. Warren had been regularly employed with real estate, investment, and computer and internet companies, primarily in Israel, since his graduation from Cornell University in 1992. On June 30, 1998, Warren telephoned the Drug Enforcement Administration ("DEA") in Belgium, identifying himself as "Jack." Warren stated that he was in Israel, and that he had been propositioned by a drug trafficker, known only as "Sammy," to act as a courier to transport ecstasy, an illegal "designer drug," from Belgium to New York City and/or cocaine from Panama to Europe. Warren claimed he had never been involved in this type of activity before but "became interested" after he was offered $15,000 for the task. In the course of his initial conversations with the DEA, he expressed his desire to cooperate with law enforcement officials, and a special agent informed him that no plan could be devised until Warren was able to provide additional names or until details were confirmed. Warren said he would call again once he had more information.

On July 8, 1998, Warren arrived in Belgium and called the special agent, and the two men met. Warren reported to the DEA agent in the course of their meeting that he needed the money he was to receive as a drug courier "because he was several hundred thousand dollars in debt as the result of bank frauds and dealings with Israelis involved in vehicle thefts." Presentence Report ("PSR") P 9. Warren also reported that a flight reservation had been made for him on July 9, 1998. He had been told that the suitcase he was meant to deliver would be brought to his hotel in Brussels on the morning of July 9, 1998.

After debriefing Warren, the DEA agent called a federal customs agent in the United States to arrange for a controlled delivery. Customs agreed to assist, provided Warren was to arrive in Newark on July 13, and not July 9. Warren declined to follow this course of action, believing that it placed him in danger. The special agent then advised Warren to walk away from the situation, warning that a "lookout" would be placed on him at United States airports, and he would be stopped and searched if he tried to enter the United States. Warren stated that he would not continue his interactions with the drug traffickers and would return to the United States or Israel. On July 9, 1998, Warren arrived in Newark International Airport and approached immigration officials. He stated that he had drugs in his possession, and customs inspectors found a large quantity of pills in his luggage. The drugs were seized, and a lab report indicated that Warren turned over 21,269.2 tablets of ecstasy. Warren was arrested and charged with importation of a controlled substance, but he later pled guilty to simple possession of a controlled substance.²

The PSR noted that where the base offense level under 2D2.1 applies, a potential ground for an upward departure may exist under Application Note 1, on the basis that the drugs were not intended for use by that defendant. The PSR also noted that the large amount of drugs Warren had carried placed his case outside of the "heartland" of the Guidelines, and that in such a case, an upward departure would be appropriate pursuant to section 5K2.0. Warren objected to the PSR in a written submission, but he did not object or argue that objection in the course of the sentencing hearing itself.

The PSR paints a picture of Warren as an intelligent young man, the product of a supportive environment with strong family and religious ties, who had not previously had any dealings with the criminal justice system. While regretting his conduct and accepting responsibility, Warren nonetheless indicated to the probation officer that he had not considered the possibility of spending any time in jail since he was "not a criminal" and was trying to help the police. At sentencing, Warren's attorney asked for special probation on the grounds that Warren had no prior criminal record had the potential for a "bright future," had accepted responsibility for his actions, and had already spent two months in jail during the pendency of the case. The District Court viewed the situation differently, and departed upward, sentencing Warren to the statutory maximum punishment of 5 years probation. The District Court's stated basis for its ruling was twofold: first, that the drugs were not for personal consumption, and second, that Warren had a history of criminal conduct. The crucial portion of the sentencing transcript reads as follows:

Despite warnings to you, clear, unequivocal warnings, you chose to board a plane to this country and carry 6,239 grams of Ecstasy with you, an extraordinary amount of drugs. Clearly not for personal consumption. As I've said, a one year term of probation and expungement of your record is insufficient given the circumstances of this case; the warnings that were given to you, the entire volitional conduct. The unusual circumstances were taken into consideration by the Government when affording you this plea. Again, although I recognize I have the right to do this, I reject it, utterly reject it.

I'm going to place you on probation, but I'm going to do so pursuant to an upward departure that these drugs were not for personal consumption, and I make that finding in light of the amount, extraordinary amount of drugs you carried into this country. The fact that as you candidly indicate in the presentence report, paragraph nine . . . you needed money because you were several hundred thousand dollars in debt as a result of bank frauds and dealings with Israel, also involved in vehicle thefts. You have a history of criminal conduct by your own admission. You need supervision. Pursuant to the Sentencing Reform Act of 1984, and Section 5K2.0, it is my judgment that you are placed on probation for a period of five years. . . . You are to refrain from applying for a passport and restrict your travel to the United States. A. at 76-77.

Warren had a criminal history category of I, so the District Court's decision to depart upward added four offense levels to Warren's offense calculation, taking it from two to six, to impose the five years of probation. See S 5B1.2(a)(1). The government argues that the District Court was justified in its upward departure under section 2D2.1 based on the defendant's intent not to consume the drugs personally. Warren argues that the District Court improperly departed upward based on section 2D2.1, but also based upon uncharged criminal conduct. We conclude that both grounds were relied upon by the District Court in its departure decision.

We have jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742. A District Court's decision to depart under the Sentencing Guidelines is reviewed for abuse of discretion, and deferential review is accorded to the extent of the departure. See United States v. Baird, 109 F.3d 856, 862, 871 (3d Cir. 1997). If no objection was made, review is for plain error. See United States v. Paslay, 971 F.2d 667, 674 n.13 (11th Cir. 1992). The imposition of a special condition of probation or supervised release is reviewed for an abuse of discretion, but absent an objection, review is for plain error. See United States v. Crandon, 173 F.3d 122, 127 (3d Cir. 1999), petition for cert. filed , (U.S. June 19, 1999) (No. 98-9838); United States v. Fabiano , 169 F.3d 1299, 1307 (10th Cir. 1999), petition for cert. filed, (U.S. June 3, 1999) (No. 98-9770); United States v. Voda, 994 F.2d 149, 153 (5th Cir. 1993).

II. Discussion

A. Upward Departure

Warren challenges the upward departure on a variety of grounds. First, he claims that the District Court did not articulate reasons for its departure. We disagree. The District Court did articulate reasons for its upward departure. He also contends that the evidence before the District Court did not provide a sufficient basis for either ground of the upward departure. As we discuss more fully below, we agree with Warren's contentions. He also argues that he did not have adequate notice of the grounds for the upward departure. We do not need to reach this argument, given our agreement with his view that the upward departure itself was not supported by the record.

1. Upward Departure Based on Quantity of Drugs under Section 2D2.1 or Section 5K2.0

In departing upward, the District Court relied in...