JOHN E. MEYERS, SBN 43561
2049 Century Park East Suite 1200
Los Angeles, California 90067
Telephone: 310-788-9477
-and-
MICHAEL C. BOURBEAU, SBN 90773
21 Union Street
Boston, Massachusetts 02108
Telephone: 617-722-9292
Attorneys for Defendant
JAMES SMITH
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) CASE NO. CR 99-000 NM
) MEMORANDUM RE SENTENCING;
vs ) RESPONSE TO PRE-SENTENCE
) REPORT; REQUEST FOR
JAMES SMITH ) DOWNWARD DEPARTURES
Defendant. )
TO THE CLERK OF THE ABOVE-ENTITLED COURT, ASSISTANT UNITED STATES ATTORNEY AND
DEPUTY PROBATION OFFICER, UNITED STATES PROBATION DEPARTMENT:
Defendant, JAMES SMITH, by and through his attorneys of record, respectfully submits, pursuant to FRCrP Rule
32(a)(C) and 18 U.S.C. §3553(a), the following Sentencing Memorandum, which includes any objections and/or
clarifications to the Pre-sentence Report. Mr. SMITH also respectfully moves this Honorable Court to apply the "Safety
Valve" articulated in 18 U.S.C. §3553(f)(1)-(5) and U.S.S.G. §5C1.2, as well as an appropriate Downward Departure in
addition thereto, as set forth herein. The application of the Safety Valve, in addition to the requested departure, would
allow this Court to sentence Mr. SMITH to an appropriate term that is reflective of the sentencing schemes delineated in 18
U.S.C. §3553.
Before this Honorable Court stands a 21 year old young man, a promising theatrical student at the University of Southern California, who has been charged with and pled guilty to sales of LSD to undercover DEA agents. This memorandum is being submitted to assist the Court in its determination of the most appropriate sentence for Mr. SMITH by addressing the available sentencing options under the provisions of 18 U.S.C. § 3553 and the United States Sentencing Guidelines.
Under 18 U.S.C. § 3553 the court must consider various factors prior to the imposition of sentence including the kinds of sentences available under the United States Sentencing Guidelines and the need to avoid unwarranted sentencing disparity among similar defendants.
The Guidelines were developed from the Sentencing Reform Act of 1984 to "further the basis purposes of criminal punishment: deterrence, incapacitation, just punishment and rehabilitation." U.S.S.G. Part A Introduction, 2. The Statutory Mission. Congress sought to "combat crime through an effective, fair sentencing system. To achieve this end, Congress first sought honesty in sentencing . . . ." Id. The Basic Approach.
Importantly, the Sentencing Guidelines and its promulgating statute, retained traditional judicial discretion by permitting a court to depart from the applicable guideline range when it finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines . . . 18 U.S.C. § 3553(b)." U.S.S.G. Part A 4(a). As set forth below, there are several appropriate grounds for departure in this matter.
Submitted with the Pre-sentence Report are numerous letters of support which attest to Mr. SMITH's character and which
will hopefully assist the Court in reaching an appropriate sentence. Additionally, attached to the PSR, is a report from
Michael Meyer M.D., Ph.D. which presents a comprehensive psychological evaluation of Mr. SMITH.
THE PRE-SENTENCE REPORT
Defendant appreciates the time and effort the United States Probation Office has spent in its formulation of the
Pre-sentence Report and in its recommendation to the Court. Despite said efforts, Mr. SMITH respectfully disagrees with
the Probation Officer's legal determination concerning the base offense level and how the applicable offense level is
calculated. Mr. SMITH also respectfully disagrees with Probation's analysis of sentencing entrapment, its failure to state
other reasonable grounds for departure, its assessment of Mr. SMITH's ability to pay the fine and its recommendation for 8
years of supervised release. Therefore, the objections to these issues as well as clarification of certain facts are addressed
below by reference to the applicable paragraph in the PSR:
Paragraphs 16-19. Mr. SMITH has no way of knowing what was stated by his co-defendant to the confidential source in
un-recorded conversations. He would, however, like to clarify the information contained in these paragraphs to emphasize
that at no time prior to the July 1999 negotiations with the agent, did The co-defendant or anyone else discuss with him the
possibility of him acquiring the 500-1000 units of LSD that was discussed in said paragraphs. In fact, the March 15, 1999
recorded conversation with the agent, N-4, makes clear that The co-defendant informed the agent that SMITH was out of
town and that shehad not had the opportunity to speak with him regarding the potential transaction before he left. Nothing
apparently became of those discussions between the agent and The co-defendant.
Also, nothing became of the discussions with the agent for a potential 200 unit transaction in May, 1999. During the
recorded May 3,1999 conversation between The co-defendant and SA Lockhart, N-7, The co-defendant again made clear
that SMITH was not the source of the original 200 unit transaction that he had retrieved it from "a friend" and that she had
different people that she could go to to acquire the 200 units. Later, on May 20, 1999, SA Lockhart made a recorded
telephone call in which The co-defendant stated that she would check with "SMITHie" to see if he knew "anything,"
regarding locating the 200 unit request. She also stated that she would check with friends in San Diego (where the agent
said he was located) to see if she knew anyone there who could supply the agent with his requests. N-8 .
Paragraphs 52-60. Pursuant to the plea agreement stipulation,see PSR ¶ 106, the parties have stipulated that the base
offense level, absent adjustments for specific offense characteristics and departures, is 28 pursuant to U.S.S.G. §
2D1.1(c)(6). Mr. SMITH, therefore, respectfully disagrees with Probation's determination that U.S.S.G. § 2D1.2 provides
the base offense guideline.
While Mr. SMITH would agree that he may be subject to the 1 year mandatory minimum applicable to a protected area discussed in 21 U.S.C. § 860 (Count 3), he respectfully submits that he otherwise is entitled to all specific offense provisions, such as the safety valve, that are applicable to a 21 U.S.C. § 841 offense which § 860 has cross-referenced. Contrary to Probation's determination that the "cross-reference in U.S.S.G. § 2D1.2(a)(2) refers only to "the Drug Quantity Table," PSR ¶ 60, that provision specifically delineates that the "Base Offense Level" is " 1 plus the offense level from § 2D.1 applicable to the total quantity of controlled substances involved in the offense." U.S.S.G. § 1B1.5 (b)(1) cited by Probation for its position, specifically contradicts its determination. That section provides:
" An instruction to use the offense level from another offense guideline refers to the offense level from the entire guideline(ie, the base offense level, specific offense characteristics, cross references and special instructions) except ....
(2)[when a instruction refers to a] particular subsection or table referenced, and not to the entire guideline." emphasis
added.
The Commentary to said provision, which explains how to apply cross-references, makes specific reference to the "Base
Offense Level" discussed in U.S.S.G. § 2D1.2(a)(1) and (2) and states that "Such reference[s] incorporate[s] the specific
offense characteristics, cross-references and special instructions as well as the base offense level," emphasis added. The
Commentary further provides an example of what is meant by a reference to a specific subsection, which again shows how
Probation misinterpreted how to apply the cross reference in § 2D1.2(a)(2). That example, U.S.S.G. § 2D1.10 (a)(1), makes
specific reference to "3 plus the offense level from the Drug Quantity Table in § 2D1.1" emphasis added. The
Commission clearly made no such reference to "Drug Quantity Table" in U.S.S.G. § 2D1.2(a)(2) and instead chose
language that made the specific offense characteristics of § 2D1.1 part of the offense level that is to be calculated.
The specific offense characteristic of the "safety valve," which Probation indicates that Mr. SMITH qualifies for, PSR ¶ 59,
would therefore be applicable to the cross referenced offence level in U.S.S.G. § 2D1.2(a)(2). Mr. SMITH would
thus be entitled to the 2 level specific offence characteristic reduction outlined in 2D1.1(b)(4).
Paragraph 68 The total offense level should be 23 absent departures (starting with stipulated base of 28, see PSR ¶ 106).
Paragraph 102 Mr. SMITH respectfully disagrees that he will have the ability to pay a substantial fine. Although it is
expected that he will receive $700 per month in a couple of years from a trust fund that came from an automobile accident
when he was a child such limited funds should not tapped given his intent to finish school.
Paragraph 105 The mandatory minimum to Count 3 is 1 year, not5. The cross reference to § 841's mandatory minimum in
§ 860 also includes the specific offence characteristics of § 841 such as the safety valve. See 18 U.S.C. § 3553(f) which
limits the applicability of the mandatory minimum in violations of § 841 offenses if certain criteria is met. Section 3553(f)
states specifically that the court "shall impose a sentence pursuant to the guidelines.... without regard to any statutory
minimumsentence...," emphasis added. Section 860's reference to the mandatory minimum of § 841, therefore, only has
meaning if a mandatory minimum under § 841 is required. In that in this case no mandatory is required under § 841
because of the applicability of the safety valve, the cross reference to 841 would provide no higher mandatory minimum
than the one year mandatory included in § 860. See also the above discussion concerning the application of the
cross-reference in U.S.S.G. § 2D1.2.
Paragraph 106 Per the plea agreement, Mr. SMITH respectfully asks the court to adopt the stipulated base offense level of
28 prior to adjustments and departures.
Paragraph 110. Applicable fine range would be commensurate with the ultimate offense level determined by the court.
Part E.. Departures ..see below..
BRIEF OVERVIEW OF THE CASE
The instant case involves an undercover drug investigation by the DEA that began in February 1999 with an investigation
into alleged LSD distribution by Mr. SMITH's co-defendant, Rita The co-defendant. At that time, Special Agent Lockhart
and a confidential source negotiated and completed a 200 unit sale during which Mr. SMITH demanded payment on behalf
of his co-defendant, PSR ¶ 15. During March, April, May and June, the agents attempted to negotiate further LSD
transactions, but nothing transpired. On July 1, 1999, Special Agent Lockhart and WAHDWANI discussed a 300 unit sale
but she told the agent that she "and 'SMITHIE' did not have enough money to front the source of supply for the LSD . . ."
That sale subsequently took place at the co-defendant's residence on July 2, 1999. Her apartment house was located within
1000 feet of a playground (21 USC 860) DEA 6s, Special Agent King, July 6, 1999 and July 7, 1999, PSR ¶s 21-24. On
July 19, 1999, a 1000 unit transaction was sought by the agent and completed with SMITH for $1,300. At that time,
SMITH indicated that his source goes up to San Francisco and "whatever they have is what he gets;" that he did not have
anymore LSD, PSR ¶ 28. Subsequently, on August 30, 1999, Special Agent Lockhart contacted SMITH to acquire 5000
units, at which time SMITH told the agent that he did not have any LSD for sale but that "he could 'use the money' and 'that
he needed the money to repair the engine on his 12 year old Mercedes.'" DEA 6, Special Agent Lockhart, September 1,
1999, PSR ¶ 29. SMITH, later that evening, brought the agent to his source and acquired the 5000 units with the agent's
money. DEA 6, Special Agent Lockhart, September 7, 1999, PSR ¶ 33. On September 1, 1999, Special Agent Lockhart
made another request for 5000 units of LSD, which SMITH was able to acquire and deliver on September 2, 1999, at which
time he was arrested, PSR ¶s 38-39. After his arrest, SMITH discussed his sources of supply in great detail. DEA 6,
Special Agent King, September 9, 1999, PSR ¶ 44.
APPLICABLE AUTHORITY
The total quantity from all transactions here in issue is 11,500 units of LSD. (1) Pursuant to U.S.S.G. § 2D1.1, Application Note (H), the weight of the carrier medium is not counted; that for the purposes of Guideline calculation, each dose is equal to .4 mg (2)for a total weight here of approximately 4.6 grams, PSR ¶ 58. According to the drug analysis provided, the gross weight, inclusive of the blotter paper carrier medium, exceeds 80 grams.
Pursuant to 21 U.S.C. § 841(b)(1)(A)(v), such weight carries the potential of a ten year mandatory sentence. (3) Justice Kennedy, however, wrote in United States v. Neal, 516 U.S. 284; 116 S.Ct. 763 (1996) that "there may be little in logic to defend the statute's treatment of LSD; it results in significant disparity in punishment meted out to LSD offenders relative to other narcotics traffickers . . . [but] Congress, not this court, has the responsibility of revising its statutes." (4)
Both Probation and the government have agreed, however that the 10 year mandatory minimum as to counts 1 and 8
should not be applied because of the provisions of the "safety valve," 18 U.S.C.§ 3553(f), PSR ¶ 59, Government's Position
Regarding Presentence Report at 1.
CRITERIA FOR APPLICATION OF THE SAFETY "VALVE"
18 U.S.C. § 3553(f), U.S.S.G. § 5C1.2
1. Not more than one criminal history point.
2. No violence or threats of violence.
3. Offense did not result in death or serious injury to anyone.
4. Defendant not an organizer, leader or supervisor of others in the offense.
5. Defendant has truthfully provided to the government all information and evidence concerning the offense, but the fact
that defendant has no useful information to provide or the government is already aware of the information shall not
preclude the court's determining that the defendant has complied with this element.
In this case, the government and Probation concede and agree that Mr. SMITH has absolutely fulfilled all the criteria
enumerated above. Pursuant to U.S.S.G. § 5C1.2 and § 2D1.1(b)(6), the sentence imposed should be without regard to any
statutory mandatory minimum and an additional two level decrease in offense level is appropriate to apply.
DEPARTURE
Mr. SMITH respectfully submits that there are numerous factors that bring this case out of the "heartland" of guideline
cases and, therefore, a downward departure in this particular matter is warranted. Following the United States Supreme
Court ruling in United States v. Koon, 518 U.S. 81; 116 S.Ct. 2035 (1996), the Sentencing Commission has recognized that
a decision to depart downward "embodies the traditional exercise of discretion by the sentencing court," U.S.S.G. § 5K2.0,
Commentary. Defendant respectfully moves this Honorable Court to exercise that discretion based upon the following:
1. Sentencing Entrapment and/or Manipulation
The normal way for defendants to remedy sentencing entrapment is to seek a downward departure on that ground.
SeeU.S.S.G. § 2D1.1, application note 17; United States v. Baker 63 F.3d 1478, 1500 (9th Cir. 1995), cert. denied 133
L.Ed. 2d 767; 116 S.Ct. 824 (1996).
The United States Court of Appeals for the Ninth Circuit in United States v. Staufer, 38 F.3d 1103, 1108 (9th Cir.
1994), articulated that the basis of:
"Sentencing entrapment or 'sentence factor manipulation' occurs when 'a defendant although predisposed to commit a
minor lesser offense, is entrapped in committing a grater offense subject to greater punishment.' United States v. Stuart 923
F.2d 607,-->--> 614 (9th Cir. 1991) cert.denied 499 U.S. 967 (1991).
More recently, the Ninth Circuit explained that Staufer, thus:
held, [that] in a case where the government induced [the] target to sell far more of a controlled substance than had
formerly been within his practice or resources, that sentence entrapment applied and a downward departure was
authorized. [Id.] at 1107. We stated that 'law enforcement agents should not be allowed to structure sting operations in
such a way as to maximize the sentences imposed on defendants.' Id. Emphasis added.
United States v. Ramirez-Rangel 103 F.3d 1501, 1506 (9th Cir. 1997).
See also, United States v. McClelland 72 F.3d 717,726 (9th Cir. 1995); United States v. Baker, 63 F.3d 1478, 1500 (9th Cir.
1995);United States v. Naranjo 52 F.3d 245 (9th Cir. 1995); United States v. Martinez-Villegas, 993 F.Supp. 766,776
(C.D.Cal. 1998).
When the court finds sentencing entrapment or manipulation, such would require the exclusion of some of the drugs when
the sentencing calculation of drug quantity is made. The final amount of drugs for which a defendant should be held
responsible would require the exclusion of the drugs that were
improperly induced by the agents to be distributed when the calculation of drug quantity is made. (5)
In the case at bar, Mr. SMITH admitted he was involved in the initial sale and distribution of two small sheets of LSD, as well as personal use and distribution to his friends and classmates who participated with him at rave concerts and other events (6)
. Thereafter, between February and July 1999, only one additional sale of 300 dosage units was able to be consummated, despite numerous contacts and attempts by the undercover agents. As set forth in the DEA 6 reports, specifically one dated July 7, 1999, the agents were told by Mr. SMITH's co-defendant, prior to the transaction that Mr. SMITH "did not have enough money to front the source of supply for the " 300 hits of LSD that was being negotiated. The subsequent negotiations for the 1000 unit and two additional 5000 unit transactions were then only completed pursuant to the agent's instigation with the assistance of DEA funding. There is absolutely no evidence that Mr. SMITH was involved in any large-scale distribution of LSD or other drugs other than the transactions negotiated with the agent. See Staufer, supra at 1105, 1108. Also, at no time prior to the July and August transactions did the agents attempt to arrest Mr. SMITH despite his involvement with the smaller 200 and 300 hit transactions.
While Probation, in its recommendation opposing a finding of sentencing entrapment, has argued, and the government may argue at sentencing, that Mr. SMITH bragged about his ability to "get hundreds of the 'big ones,'" PSR Recommendation page 4,¶2, he was hardly predisposed to enter into large transactions in the absence of government involvement. In fact, prior to the last two sales, Mr. SMITH told the agent that he needed the money to fix his car and that he was getting ready to return to school. See DEA 6, August 30, 1999.
In this case, contrary to the belief of the Probation Office (page 3, ¶ 1) that the government did not engage in sentencing entrapment, the facts in this case lend themselves to no other conclusion. While the facts of Staufer may vary from the case at bar, the holding therein is squarely on point.
Sentencing entrapment occurs when the subject of a sting operation is called upon to commit a more serious crime by government agents than he was predisposed to commit absent the encouragement, in this case the money, of government agents. For example, here Mr. SMITH was predisposed to and did deliver
LSD in quantities of 200 and 300 dosage units. When the agents asked for larger quantities, 1000 and 5000 units they had specific knowledge that SMITH did not have the funds to acquire those amounts on his own, and that the drugs would either have to be "fronted" or the agents would deliver money simultaneously with the purchase. In fact, the first 5000 unit transaction occurred only because the government provided the funds.
In other words, any small time dealer can be made into a larger dealer if the funds are made available and the buyer, in this case the government, urges the sale, see e.g. United States v. Martinez-Villegas, supra at 776.
Again, contrary to the Probation Officer's view that Mr. SMITH was predisposed to dealing in large as well as small quantities (Recommendation, page 4, last paragraph) he was "built up" by the government agent into dealing the larger quantities at the sole request of the government agent who was urging the sale and supplying the funds. Since Mr. SMITH was not the source of the LSD at no time did he have the drugs immediately available; he only sought out the drugs at the request of and funding by the agent.
Contrary to the Probation Officer's opinion that the SMITH sting was not unusual because long term narcotics investigations involve small quantities of drugs to gain defendant's confidence (Recommendation page 3, last paragraph) the way most agencies such as the Los Angeles Police Department and the LA County Sheriff's Department proceed is to initially buy small quantities from a suspect and then attempt to have the suspect introduce an undercover agent to the suspect's supplier in order to bring down the major dealer or "connection" by buying directly from the major dealer.
If that is impossible, then the agency's narcotics units arrest the initial suspect; they do not continue to spend government funds on a small dealer even if they could build that dealer up to handle large quantities. The reason is that they still have a small dealer not a large one. Ideally they would like to work in an undercover agent to buy from the major dealer that is the source. (7)
In this case no attempt was made to have Mr. SMITH introduce an agent to his source of supply. In fact, the agent rejected SMITH's suggestion that the agent follow him to his source with the money during the July 1999 1000 unit transaction, seeundercover recordings, N-15, N-16.
The thrust of the agent's investigation in this case appears to be centered on SMITH and the agent's ability to buy larger and
larger amounts from him. The agent apparently excluded any attempt on the part of the government to infiltrate defendant's
source of supply.
The factual comparison to the Staufer case is inappropriate here. Staufer presents one unique factual scenario where
sentencing entrapment occurred, this another. To conclude, as the Probation Officer does, that the instant case does not fit
within Staufer's facts, and thus this does not lend itself to a finding of sentencing entrapment, is erroneous.
As the Ninth Circuit in Staufer made clear, an agent's ability to choose the amount negotiated and thus determine the defendant's sentence can only be:
discouraged and corrected . . . if courts also were able to ensure that the government has some reason to believe that defendants are predisposed to engage in a drug deal of the magnitude for which they are prosecuted.Furthermore, courts can ensure that the sentences imposed reflect the defendant's degree of culpability only if they are able to reduce the sentence of defendant's who are not predisposed to engage in deals as large as those induced by the government. Id. at 1107-1108, emphasis added.
As set forth above, there is absolutely no evidence that Mr. SMITH was predisposed to be anything more than a small dealer of 100 and 200 unit sheets of LSD. Based upon the sentencing factor manipulation herein, this Honorable Court should hold Mr. SMITH responsible for only that amount that he was reasonably able to distribute, conspire concerning or aid and abet of his own volition, that being at least 200, but not more than 500, hits or units. Such would result in a calculation (based on the .4 mg per unit) of 200 mg and a resulting base offense level of 18.
2. Extraordinary Acceptance of Responsibility.
The government has not, in this case, moved pursuant to U.S.S.G. § 5K1.1, to depart from the applicable guideline range and any statutory mandatory minimum, based on Mr. SMITH's "substantial assistance" to authorities. Said assistance does, however, evidence an extraordinary acceptance of responsibility, above and beyond that authorized by U.S.S.G. § 3E1.1.
Although in the post-Koon case, the Circuits, including the Ninth Circuit, United States v. Cruz-Guerrero, No. 98-30290, 1999, CO9.0042678 <http:// www.versuslaw.com>(9th Cir. October 18, 1999), see also United States v. Mikaelian, 168 F.3d 380,385 (9th Cir. 1999) have continued to rule that a government motion is necessary in order to benefit from a departure based on "substantial assistance", there still may be an exception in an extraordinary case. In fact, the Seventh Circuit in United States v. Santoyo, 146 F.3d 519,525-26 (7th Cir., 1998), recognized the legal theory but noted that a defendant's motion for departure based on substantial assistance would require proof of assistance so unusual "as to take it out of the heartland of § 5K1.1 cases." (8)
In the instant case, Mr. SMITH cooperated immediately with the government upon his arrest, informing them of his sources of supply. He further followed up by letter from counsel identifying how the sources could be contacted. Although the government has refused to file a 5K1.1 motion as a result of such cooperation, this Honorable Court, while mindful of the Ninth Circuit's decision in Cruz-Guerrero could grant a downward departure, based upon the immediate and substantial assistance to authorities that removes this extraordinary case from the "heartland".
Even if "substantial assistance" departures without government motions are prohibited, such basis for departure would simply prevent a departure below the statutory mandatory minimum. Other circumstances such as the "Safety Valve" and sentencing entrapment which are discussed herein, could equally provide an ample basis to break through the mandatory minimum barrier. Mr. SMITH's "substantial assistance" should not, however, go unrewarded. This assistance would evidence and give rise to a departure for Mr. SMITH for extraordinary acceptance of
responsibility. See, e.g. United States v. Jaroszenko, 92 F.2d 486, 491 (7th Cir. 1996)(remorse appropriate departure
ground).
3. Youth and Youthful Appearance.
Although age is a discouraged factor, that factor may be subject to exceptions which would allow a departure in extraordinary circumstances. In Koon, the Supreme Court concluded that:
[A] federal court's examination of whether a factor can ever be an appropriate basis for departure is limited to determining
whether the Commission has proscribed, as a categorical matter, consideration of the factor. If the answer is no - as it will
be most of the time - the sentencing court must determine whether the factor, as occurring in the particular circumstances,
taxes the case out of the heartland of the applicable Guideline. 116 S.Ct. 2035, 2051 (1996).
Similar to the situation addressed in Koon, of the difficulties that a former police officer faces in prison, so too should this
Court consider the difficulties that Mr. SMITH will face in prison as a result of his youthful appearance. He is 21 years old
and looks much younger. Such a circumstance will make any time in federal custody more difficult than the average
prisoner. Thus, this situation is sufficiently outside the "heartland" of cases to also warrant a departure.
4. Other Extraordinary Factors Concerning the
"History and Characteristics of the Defendant."
18 U.S.C. § 3553(a)(1)
Pursuant to U.S.S.G. § 5K2.0 "[a]ny case may involve factors in addition to those identified [in the Guidelines] that have not been given adequate consideration. Presence of any such factor may warrant departure from the guidelines, under some circumstances, in the courts discretion."
As set forth in the PSR, ¶s 80-83, and in the other documents filed in conjunction therewith, Mr. SMITH was a victim of a severe automobile accident as a young child when he was run over in a crosswalk. Such trauma caused him learning disabilities when he was younger. This and other matters in Mr. SMITH's life, including substance abuse, have caused Dr. Maloney, a clinical psychologist, to conclude that "Mr. SMITH does need to be involved in on-going treatment," including evaluation for treatment with 'psychoactive medications," as well as a "substance abuse treatment program [and] ongoing counseling/therapy."
Although downward departures based on mental and emotional conditions are discouraged, U.S.S.G. § 5H1.3, downward
departures in extraordinary circumstances have been found to be appropriate. See, e.g. United States v. Garza-Juarez 992
F.2d 896 (9th Cir. 1993), cert. denied 510 U.S. 1058; 114 S.Ct. 724; 126 L.Ed. 2d 688. Mr. SMITH respectfully submits
that such extraordinary circumstances are present here.
5. Boot Camp
In United Stats v. Martin, 827 F.Supp. 232,233 (S.D.N.Y. 1993), the court departed down to a 30 month sentence to allow
an 18 year old, who had been accepted to college, with strong family ties, and who had accepted responsibility to be eligible
for "boot camp". If this Court fails to depart for other reasons stated herein, the boot camp incarceration alternative could
alone provide a valid basis for departure to allow Mr. SMITH the opportunity to complete this successful BOP program.
6. Aberrant Behavior
Although the acts of distribution alleged happened over a period of time, said acts were promulgated by the DEA agents
who sought out the large number of doses of LSD that were otherwise financially and, in all practicality, unavailable to
defendant. Departure may be granted where, even if there existed multiple acts, committing the offense amounts to aberrant
behavior in light of the totality of defendant's life; spontaneity or thoughtless acts is not a pre-requisite. SeeUnited States v.
Grandmaison, 77 F.3d 555 (1st Cir. 1996); United States v. Takai 941 F.2d 738,743 (9th Cir. 1991). As set forth in the
letters attached to the Pre-sentence Report, Mr. SMITH has lived a formidable life, helping others and studying hard to
build an acting career. His involvement in drug activity was brought on during his college and "rave" concert participation
that led him to share in misguided psychedelic experimentation and subsequent distribution of LSD. Such activities were a
complete aberration to an otherwise law abiding life.
7. Combination of Above Factors
Even if any one factor is not sufficient in itself to provide a basis for departure, any combination of the above potential
reasons for departure could provide an adequate basis. United States v. Fairless 975 F.2d 664,669 (9th Cir. 1992);United
States v. Broderson 67 F.3d 452 (2d Cir. 1995).
CONCLUSION
Mr. SMITH, through counsel, therefore would respectfully move this Honorable Court for a downward departure based on
any one or more of the grounds set forth above. In view thereof, he proposes the following:
Guideline Calculation
Alternative 1
Base Offense Level (200 mg.) 18
Specific Offense Characteristic 2D1.2(a)(2) +1
Adjusted Offense Level 19
Acceptance of Responsibility -3
Downward Departure for above factors -3
Total Offense Level 13
Criminal History Category I
Guideline Sentence 12-18 months
Inability to pay fine . . PSR ¶ 111.
Suggested Sentence
One year and one day with a recommendation
to a Community Treatment Center
Alternative 2
Base Offense Level (pursuant to stipulation) 28
Adjusted Offense Level 28
Acceptance of Responsibility -3
Application of Safety Valve 2D.1.1(b)(4) -2
Downward Departure for above factors -5
Total Offense Level 18
Criminal History Category I
Guideline Sentence 27-33 months
Inability to pay fine -
Suggested Sentence - 27 months with a recommendation to the Bureau of Prisons Intensive Incarceration program
and attendance in the Bureau of Prison's comprehensive drug treatment program.
If no Departure is granted Mr. SMITH would respectfully ask the Court to sentence at the low end of Level 23 with the
Boot Camp and Drug Treatment recommendations.
DATED: December 14, 1999.
Respectfully submitted,
JOHN E. MEYERS
MICHAEL C. BOURBEAU
footnotes.....
1. The LSD in issue was "blotter" paper dipped in LSD. Each sheet is not cut or perforated but each unit is generally a 1/4
inch square cut from the sheet. The unit amounts stated herein are based on the negotiations and not any particular
calculation of the physical evidence.
2. "The dosage weight selected by the Commission exceeds the Drug Enforcement Administration's standard dosage unit for LSD of 0.05 milligram (i.e., the quantity of actual LSD per dose) in order to assign some weight to the carrier medium).
3. The courts have used a dual method of calculating an LSD sentence and have held that the entire weight of the substance and carrier medium is counted for purposes of determining the applicability of any mandatory minimums, rather than the Guideline calculation which is used for calculating non-mandatory minimum sentences. See, United States v. Neal 46 F.3d 1405 (7th Cir. 1995), affirmed 516 U.S. 284; 116 S.Ct. 763 (1996) following Chapman v. United States 500 U.S. 453; 111 S.Ct. 1919 (1991). See also U.S.S.G. § 2D1.1 Commentary.
Defendant, JAMES SMITH, has been convicted by plea of Counts I, III and VIII of the Indictment. The mandatory minimum sentence appears to be ten years pursuant to 21 U.S.C. 841,846 (absent other criteria) based on the total weight of the drug which was sold; 11,500 dosage units of LSD, which is calculated by weighing not only the drug, but also the carrier medium which, in this case, was blotter paper. See Neal v. United States, supra. See also, Chapman v. United States, supra.
4. The Supreme Court in Braxton v. United States 500 U.S. 344; 111 S.Ct. 1854 (1991) had noted that "Congress necessarily contemplated that the Commission would periodically review the work of the courts and would make whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest." Id. at 1858. Congress gave the Sentencing Commission "very broad discretion in drafting the Guidelines." United States v. Allen 24 F.3d 1180, 1186 (10 Cir. 1994). There is little question that Congress knows when to reject a Sentencing Guideline as it has previously disapproved proposed amendments lowering sentencing for crack cocaine and money laundering,see "Congressional Action" notes to U.S.S.G. § 2D1.1, but it has made no attempt to change or reject the per unit LSD calculation.
5. See United States v. Castanega 94 F.3d 592, 594 (9th Cir. 1996), "If sentencing entrapment has occurred, there is no sound reason that the government's wrongful conduct should be protected by a statutory minimum based upon an amount of drugs higher than defendant was predisposed to buy or sell." See also United States v. Montoya 62 F.3d 1 (1st Cir. 1995) "where government agents have improperly enlarged the scope or scale of the crime" the sentencing court has the power to exclude the tainted transactions from the sentencing calculations.
6. In February 1999, the instant investigation against Mr. SMITH began when Mr. SMITH demanded payment for the 200 hit sale of LSD which was negotiated by his co-defendant. Mr. SMITH also, at the time of his arrest, readily admitted his involvement in the use and distribution to his friends in addition to providing information concerning his sources. See DEA 6, Special Agent King, September 7, 1999.
7. Defense counsel John Meyers is fully familiar with the methodology of narcotics enforcement in that he is a retired Lieutenant in the L.A. County Sheriffs Department who worked for 10 years in the Narcotics Bureau.
8. The Fifth and D.C. Circuits have held, in decisions that have since been vacated, that a district court may depart down to reward substantial assistance even where the government declines to file a motion. United States v. Solis 161 F.3d 281 (5th Cir. 1998), vacated and reversed en banc 169 F.3d 224 (5th Circ. 1999); accord In re Sealed Case 149 F.3d 1198 (D.C. Cir. 1998), vacated and reversedin banc 1999.CDC 42167 <http://www.versslaw.com>. Although these decisions have been vacated, the reasoning stated herein is still instructive and persuasive. Citing and adopting the In re Sealed Caseanalysis, the court in Solis noted that after Koon v. United Statessupra, the Guidelines do not prohibit such a departure, the [D.C.] court concluded that "a substantial assistance departure without a government motion is neither encompassed by nor equivalent to any mentioned, encouraged, or discouraged factor, and was thus not adequately considered by the Commission." Id. At 1203. The court reasoned that § 5K1.1 does not constitute adequate consideration because § 5K1.1 does not apply without a government motion and 28 U.S.C. § 994(n) "explicitly directed the Commission to assure that the guidelines reflect the general appropriateness of lesser sentences for defendants who substantially assist the prosecution." Id. at 1204.