Opinion
Criminal No. 04-375(SEC).
May 27, 2005
ORDER
Pending before the Court is Defendant's motion for reconsideration of his sentence (Docket # 108). Defendant requests that the Court correct the sentence imposed and grant him the additional third point for acceptance of responsibility provided for by Guideline § 3E1.1(b) of the U.S. Sentencing Guidelines Manual ("the Guidelines"). After reviewing Defendant's motion, the sentencing transcript (Attachment # 1), and the applicable section of the Guidelines, for the reasons set forth below, we find that Defendant's request should be DENIED.
Section 3E1.1(b) provides that:
If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.
USSG § 3E1.1(b)(2004) (emphasis added). At the sentencing hearing held on May 20, 2005, Defense counsel inquired as to whether the Government would provide the third point for acceptance (Tr.23). In response, the Government declined to recommend that Defendant receive this third point (Tr. 23-24). Contrary to Defendant's assertion, the Court then expressed its agreement with the Government's position (Tr. 24).
Defendant argues that because the Guidelines are merely advisory after the Supreme Court's decision in United States v. Booker, 125 S.Ct. 738 (2005), the Government's motion is not necessary to obtain the third point reduction. The Supreme Court in Booker held that "[t]he district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." Id. at 767. Thus, this Court will continue to follow the Guidelines unless a strong reason is shown justifying a different sentence. See United States v. Wilson, 350 F. Supp. 2d 910 (D. Utah 2005) (finding that in all but the most unusual circumstances, the recommended Guidelines sentence will still be the most appropriate sentence). No such strong reason has been presented in the instant case. Accordingly, Defendant's request for reconsideration is DENIED.
SO ORDERED.
THE COURT: The court will accept the proffer made by counsel, regarding those personal circumstances. Before going into the allocution, let me rule regarding the two issues before the court. The court denies the request for a minor role adjustment in the offense. The court is not in agreement with the defense counsel on this. The court does agree with defense counsel regarding the applicability of the safety valve. We believe this defendant has truthfully provided to the government all information and evidence regarding the offense or offenses that were part of the course of conduct here. Therefore, we will grant him the safety valve. In doing so, we are mindful also of the timing of all of this, and the interest that the government has in the cooperation of this defendant. That being said, and before we proceed to sentencing, let's hear from the defendant and then the government, if they wish to make any sentencing recommendations they may do so. Perhaps let's hear from the government first, regarding sentencing recommendations if they have any.
AUSA MASSUCCO: Very briefly Your Honor. First of all Your Honor, the government feels that the 120 month sentence that was recommended by the probation officer, without the safety valve, is the appropriate consideration, and there are several reasons for that. In the event which the court has said that you will grant the safety valve provision, the government believes, the government submits that the upper limits of that provision, I believe it is 97 to 121 months, should apply. Once again the government feels that the 121 month range which is the statutory range, would be the appropriate sentencing in this case. As for the defendants acceptance of responsibility in this role, the government feels he has fallen significantly short in accepting his true responsibility, of what he did with Mr. Angular on September 23, 2004. And it is ironic, and the government was listening to the proffer by the defense counsel, that the defendant has received some devine intervention, and it is ironic and sometimes an insult of those truly devout, when people find God before the sentencing. We would ask that the court not consider this devine intervention before sentencing.
The relative who was a prostitute, addicted to drug, the government finds that ironic as well, because the defendants own activities have attributed to that problem.
MR. VALCARCEL: Your Honor, I find that a little bit cutting it close, Your Honor. I apologize but I object to that, Your Honor.
AUSA MASSUCCO: I am speaking only to the points addressed by counsel, Your Honor. Finally your Honor, this defendant also has a history of narcotics trafficking, for which he admitted both to the probation officer, in the presentending report and also during the safety valve, admitted that he had previously engaged in narcotic transactions specifically with the codefendant. The defendant argued that he is not predisposed to committing this kind of offense, but the government submits that he is exactly the type of person that is predisposed to commit this offense because of his narcotics dealing history.
For that reason the government feels that a sentence of 120 months for this defendant for his actions committed on or about September 23, 2004, would be the appropriate sentence in this case.
THE COURT: Very well, From the defendant in allocation, if he wishes?
MR. VALCARCEL: Your Honor, if I may, I take it the Court has ruled with acceptance, will the government be providing the third point for acceptance?
AUSA MASSUCCO: Government will not recommend that.
MR. VALCARCEL: Even though he pled guilty to the offense?
AUSA MASSUCCO: That is correct, Your Honor.
THE COURT: And we Agree with the government on that.
Go ahead sir. The defendant may address the court.