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 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 ...