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June 29, 2000


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 defendant Sanderson.


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 regard.

First, the government asserts that Sanderson should receive a two-level upward adjustment under USSG § 3C1.1. That section provides:

Obstructing or Impeding the Administration of Justice
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 ...

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