United States District Court, Northern District of California
June 29, 2000
UNITED STATES OF AMERICA, PLAINTIFF,
MICHAEL WAYNE SANDERSON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Walker, District Judge.
This case is before the court for sentencing of defendant
Michael Wayne Sanderson, who was convicted by a jury on December
17, 1997, on three counts: (1) conspiracy to export cocaine in
violation of 21 U.S.C. § 963 and 953(a); (2) conspiracy to possess
with intent to distribute cocaine in violation of 21 U.S.C. § 846
and 841(a)(1) and (3) aiding and abetting possession with intent
to distribute cocaine in violation of 18 U.S.C. § 2 and
21 U.S.C. § 841(a)(1).
The relevant facts are provided in the presentence report and
the parties' sentencing memoranda. Sanderson is an Australian
citizen who has been in federal custody since his arrest on
February 27, 1996. Acting on information received from Australian
officials, federal customs agents detained codefendants Mark
Duggan and Euripidis Mitrou as they were boarding a flight from
San Francisco to Sydney on February 26, 1996. Agents searched
Duggan and Mitrou and found a total of 7.9 kilograms of cocaine
in packages strapped to their bodies. Further investigation led
agents to Sanderson and codefendant Jaime Basalo, who were
staying in a San Francisco hotel. When officers detained Basalo
and Sanderson, they discovered in their possession luggage
containing $97,700 in cash, latex gloves laced with cocaine
residue, bandages, adhesive tape and documentary evidence of a
smuggling operation linking Sanderson, Basalo, Duggan, Mitrou and
another Australian, Gilbert John Ferguson.
Four defendants (Basalo, Sanderson, Duggan and Mitrou)
eventually were charged in a superseding indictment.*fn1 Duggan
and Mitrou pleaded guilty to all three counts and testified for
the government at the trial of Sanderson and Basalo. According to
their testimony, Duggan and Mitrou were recruited in Sydney to
fly to the United States with cash and to return with cocaine.
They testified that they carried about $22,500 and $80,000,
respectively, to the United States in February 1996. Upon their
arrival they met with Sanderson and Basalo, who accepted the cash
and, immediately prior to the return flight to Sydney, assisted
in strapping cocaine to the bodies of Duggan and Mitrou.
Duggan and Mitrou were each sentenced on February 10, 1998, and
received, upon the court's granting of the government's motion
for a downward departure for substantial assistance, a term of 24
months imprisonment and five years supervised release.*fn2
Basalo has not been sentenced; this order pertains only to
The court must establish the appropriate sentence by reference
to the United States Sentencing Commission guidelines. The base
offense level under the guidelines is undisputed. Pursuant to
USSG § 3D1.2(d), in cases in which the base offense level will be
determined by the quantity of a substance involved, the counts of
conviction are grouped together for sentencing purposes. For such
grouped counts, the court must determine the offense
level corresponding to the aggregated quantity of the controlled
substance involved. In this case, that quantity is 7.9 kilograms,
resulting under USSG § 2D1.1(a)(3) in a base offense level of 32.
The parties also agree that Sanderson has no known prior
convictions in the United States or Australia and therefore falls
within criminal history category I. See USSG § 4A1.1.
Taking into account the specific offense characteristic
adjustments of USSG § 2D1.1(b), the court finds — and the
government agrees — that Sanderson is entitled to a downward
adjustment of two points for meeting the criteria of the "safety
valve" provision of 18 U.S.C. § 3553(f). See USSG § 2D1.1(b)(4).
Sanderson does not have more than 1 criminal history point; he
did not use violence or a firearm in connection with the
offenses; the offenses did not result in death or serious injury;
Sanderson was not an organizer or leader in the offense and has
been debriefed by the government. The offense level therefore
drops to 30 and, under 18 U.S.C. § 3555(f) and USSG § 5C1.2, the
statutory mandatory minimum sentence does not apply.
Under the guidelines, the court may further adjust the offense
level based on aspects of the defendant's conduct and other
relevant circumstances. The parties raise several issues in this
First, the government asserts that Sanderson should receive a
two-level upward adjustment under USSG § 3C1.1. That section
Obstructing or Impeding the Administration of
If (A) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the
administration of justice during the course of the
investigation, prosecution, or sentencing of the
instant offense of conviction, and (B) the
obstructive conduct related to (I) the defendant's
offense of conviction and any relevant conduct; or
(ii) a closely related offense, increase the offense
level by 2 levels.
USSG § 3C1.1. The purported basis for adjustment under this
section is Sanderson's alleged attempt to coordinate a false
alibi with Basalo while the two were in custody. The government
submits a copy of a note passed by Sanderson on November 14, 1997
— the eve of trial — to a guard at the San Francisco County Jail
for delivery to Basalo. See Gov Sent Mem, Exh 1. Application Note
4(a) to the guideline lists attempting unlawfully to influence a
codefendant as conduct to which the obstruction adjustment
applies. See USSG § 3C1.1, comment. (n. 4). The note*fn3 is an
obvious attempt by Sanderson to coordinate a story with his
codefendant; indeed, defense counsel does not argue otherwise.
See Def Sent Mem at 8 (describing passage of note as "attempted
obstruction" and a "hopelessly flawed, spontaneous, and foolish
act * * *."). Accordingly, a two-level upward adjustment of the
offense level to 32 is warranted under guideline 3C1.1.
Sanderson asserts several bases for downward adjustments to the
offense level. First, he argues that he is entitled to a
reduction for a mitigating role in the offense pursuant to USSG §
3B1.2. That section allows a sentencing court to reduce the
offense level by two, three or four points, depending on the
level of participation by the defendant in the offenses of
conviction. If the defendant was a "minimal" participant, a
four-level adjustment is appropriate, USSG § 3B1.2(a); if a
"minor" participant, a two-level adjustment is appropriate, USSG
§ 3B1.2(b); in cases
falling in between, the court may decrease the offense level by
three points. The guideline commentary suggests that a "minimal"
participant is one who is "plainly among the least culpable of
those involved in the conduct of a group." USSG § 3B1.2, comment.
(n. 1). A "minor" participant, meanwhile, is one "who is less
culpable than most other participants, but whose role could not
be described as minimal." USSG § 3B1.2, comment. (n. 3).
The court concludes that Sanderson is entitled to a four-level
downward adjustment as a minimal participant. The government has
argued that all four codefendants were part of a larger cocaine
smuggling operation, and that of the four Basalo was the
organizer of the present offense conduct, although (the
government does not concede this) even he may be a minor
participant in the overall scheme. Duggan and Mitrou were
couriers of both money and drugs. Sanderson has been described as
Basalo's assistant and has admitted to smuggling cash into this
country, but there is no evidence that he ever smuggled cocaine.
His conviction rests upon evidence that he helped Basalo strap
cocaine packages to Duggan and Mitrou.
Minimal participant status must be based on the culpability of
a defendant's conduct relative to other participants in the
offense. United States v. Petti, 973 F.2d 1441, 1447 (9th Cir.
1992). While the evidence at trial established that Basalo was
the point man, Duggan and Mitrou were couriers, and that all
three had been to the United States on previous occasions to
engage in smuggling activity, this was Sanderson's first trip to
this country and his role appears to have been that of Basalo's
dogsbody. It would be speculative to infer a more involved role,
as the government urges the court to do. Furthermore, although a
defendant's "lack of knowledge or understanding of the scope or
structure of the enterprise and of the activities of others is
indicative of a role as a minimal participant," USSG § 3B1.2,
comment. (n. 3), such ignorance is not a prerequisite to minimal
participant status. Petti, 973 F.2d at 1447. Sanderson's
general knowledge of the smuggling operation does not preclude
the four-level adjustment the court deems appropriate. Based on
the low level of culpability of Sanderson's conduct relative to
his codefendants, the court concludes that the offense level
should be reduced to 28 under USSG § 3B1.2(a).
Finally, Sanderson requests a downward adjustment under USSG §
3E1.1 for acceptance of responsibility. This section is plainly
inapplicable here, however, in a case in which Sanderson put the
government to its burden of proof at trial by denying the
essential factual elements and only after conviction admitted
guilt. See USSG § 3E1.1, comment. (n. 2); United States v.
Hicks, 217 F.3d 1038, 2000 WL 744077 (9th Cir. June 12, 2000).
Based on the foregoing, the court concludes that the total
offense level is 28 with a criminal history category of I.
According to the sentencing table provided in chapter five, part
A, of the sentencing guidelines, the applicable sentencing range
is 78-97 months imprisonment.
The remaining issue is whether grounds exist, as Sanderson
argues they do, for a departure from this guideline range. The
sentencing court must follow the applicable guideline range
"unless the court 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 guidelines * * *." 18 U.S.C. § 3553(b); see also
USSG § 5K2.0. As the Supreme Court has explained, this provision
preserves the district court's sentencing discretion and
"acknowledg[es] the wisdom, even the necessity, of sentencing
procedures that take into account individual circumstances."
Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 135
L.Ed.2d 392 (1996).
Departure decisions are by their very nature case-specific. In
Koon, the Court described the contours of the sentencing
court's discretion thus:
Before a departure is permitted, certain aspects of
the case must be found unusual enough for it to fall
outside the heartland of cases in the Guideline. To
resolve this question, the district court must make a
refined assessment of the many facts bearing on the
outcome, informed by its vantage point and day-to-day
experience in criminal sentencing.
Id. at 98, 116 S.Ct. 2035. The Court adopted a framework of
questions to guide the district court's departure analysis. The
first, naturally, is:
(1) What features of this case, potentially, take it
outside the Guidelines' "heartland" and make of it a
special, or unusual, case?
Id. at 95, 116 S.Ct. 2035 (quoting United States v. Rivera,
994 F.2d 942, 949 (1st Cir. 1993)).
Sanderson points to the existence of an employee incentive
program within the United States Customs Service and the
government's failure to disclose prior to trial that several of
the Customs agents involved in Sanderson's investigation and
prosecution, including most of those who testified against him,
received special bonuses for their work. This court has described
the Customs Service incentive program and its troubling
implications in a prior case. See Buritica v. United States,
8 F. Supp.2d 1188, 1193-95 (N.D.Cal. 1998). For present purposes, it
will suffice to note that of the 12 customs officials who
testified for the government at Sanderson's trial, eight had
received special compensation under the incentive program for
their drug interdiction efforts, including two (Textile Analyst
Diane Irvine and Supervisory Special Agent Robert Stiriti) who
were rewarded in part for their performance in the Sanderson case
itself. It is undisputed that this information was not provided
to defense counsel until after Sanderson's trial and conviction.
There can be no doubt that the above renders this case unusual.
The court is therefore satisfied that it has the authority to
sentence outside the guideline range. The more difficult issue is
whether the unusual aspects of the case support a downward
departure. Here the guidelines are of little help. That is, the
Commission has neither forbidden, encouraged nor discouraged
departures based on governmental misconduct or possible prejudice
to defendants arising therefrom. See United States v. Coleman,
188 F.3d 354, 359 (6th Cir. 1999) ("Improper investigative
techniques, used as a basis for departing downward, are not
factors considered by the Guidelines.").
Much attention has been given in the briefs to United States
v. Lopez, 106 F.3d 309 (9th Cir. 1997). In Lopez, the Ninth
Circuit held that a district court did not abuse its discretion
in departing downward three levels due to prejudice to the
defendant arising from a confluence of ethical violations by the
prosecutors and defense attorneys involved. 106 F.3d at 311.
Lopez was represented by an attorney who refused to plea bargain.
Interested in pursuing negotiations with the government, but
fearful of alienating his chosen trial counsel, Lopez arranged
through his codefendant's counsel to engage in a series of plea
discussions with the government. These discussions were
fruitless; they resulted only in the withdrawal of Lopez's
counsel upon his discovery of the negotiations. Upon a motion by
substitute counsel, the district court dismissed the indictment
based on prosecutorial misconduct. United States v. Lopez,
765 F. Supp. 1433, 1456 (N.D.Cal. 1991). The Ninth Circuit reversed
and remanded for trial, holding that although the district court
correctly found a violation of the prosecutor's ethical duties,
dismissal was too grave a sanction. United States v. Lopez,
4 F.3d 1455, 1464 (9th Cir. 1993).
Lopez was tried and convicted, and on cross-appeal of the
sentencing the government
argued that the district court erred in departing downward based
on the circumstances which led to its original decision to
dismiss the indictment. The Ninth Circuit held that Lopez had, in
essence, been deprived of the opportunity for full and fair plea
negotiations, and therefore affirmed the district court's
departure "due to prejudice Lopez suffered as a result of the
government's misconduct." Lopez, 106 F.3d at 311.
For present purposes, the court draws the following lessons
from Lopez. First, the case affirms the district court's broad
latitude to depart from the guideline range in cases presenting
unusual circumstances, even when the unusual aspects of the case
have nothing to do with the offense conduct. Second, it makes
clear that governmental conduct unrelated to the defendant's
factual guilt or innocence is a relevant sentencing
consideration. Finally, Lopez suggests that a departure
determination should focus on prejudice to the defendant arising
from such conduct.
Bearing these lessons in mind, the court finds that a downward
departure is appropriate in this case.
The defense was deprived, during key periods of the
proceedings, of valuable information, i.e., that government
witnesses participated in the Customs Service incentive program.
Such information would have been another arrow in defendant's
quiver during plea negotiations and for purposes of impeachment
at trial. The government's argument that disclosure simply could
not have effected the outcome of this case is seriously
undermined by common sense and the evidence submitted by the
defense. See Decl of A.J. Kutchins, Supp Exh in Support of Def
Mtn for New Trial or Downward Dep (describing apparent influence
of disclosure of incentive program on government's willingness to
negotiate favorable settlement of unrelated drug case). This is
not to say that with disclosure the outcome of this case would
have been different or even that present circumstances demand a
new trial.*fn4 But the court finds that defendant's position was
subverted to an extent that supports a sentencing departure.
As noted above, the guideline range corresponding to an
adjusted total offense level of 28 with a criminal history
category of I is 78-97 months imprisonment. The court concludes
that a four-level departure is appropriate, reducing the
applicable offense level to 24 and the sentencing range to 51-63
months. With credit for time served, a sentence at the low end of
this guideline range will entitle Sanderson to immediate release.
In determining the magnitude of the appropriate departure, the
court has found relevant that Duggan and Mitrou each received
10-level departures to enable a sentence amounting to time
In exercising its discretion under the guidelines, the court
has also taken into account the defendant's demeanor at
sentencing, his apparent remorse and his plans to return to
Australia upon the expiration of his sentence. It is the court's
firm belief that in light of the evidence adduced during a
lengthy trial and all the circumstances of this case, the
sentence herein imposed is consistent with the policies of the
sentencing guidelines, is more than sufficient to satisfy the
general purposes of punishment and deterrence and is otherwise
Pursuant to the Sentencing Reform Act of 1984, it is the
judgment of the court that the defendant, Michael Wayne
Sanderson, is hereby committed to the Bureau of Prisons for a
term of 51 months on each count to be served concurrently. Upon
release from imprisonment, the defendant shall be placed on
supervised release for a term of five years on each count, also
run concurrently. The court adopts the recommended terms and
conditions of supervised release as set forth in the presentence
report. In light of Sanderson's plans to leave the country,
however, Sanderson's duty to report to the probation office shall
arise only upon his return to the United States within the
five-year period of supervised release. Should Sanderson, after
departing this country, return to the United States at any time
during the supervised release term, he shall within 72 hours of
his return report to the United States Probation Office in the
district in which he enters the country and be subject to the
standard conditions of supervised release. The court adopts the
additional factual findings of the presentence report, including
that of Sanderson's inability to pay a fine and the corresponding
recommendation that no fine be imposed.
It is further ordered that Sanderson shall pay to the United
States a special assessment of $50 for each conviction, for a
total of $150, due immediately.
The clerk shall prepare a judgment in accordance with this
IT IS SO ORDERED.