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August 29, 2000


The opinion of the court was delivered by: Walker, District Judge.


Jaime Aberlado Basalo 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). This order imposes sentence for these offenses.


The relevant factual background is provided in the presentence report and the parties' sentencing memoranda. Basalo is a native of Uruguay who has resided in Australia for most of his life and has become an Australian citizen. He has been in federal custody since his arrest on February 27, 1996.

Four defendants (Basalo, Sanderson, Duggan and Mitrou) 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.

At trial, Duggan and Mitrou also testified about a similar trip to the United States in December 1995, during which they and a third courier, Mary Barnes, met Basalo in San Francisco. According to their testimony, on December 12, 1995, the day of their return flight to Sydney, Basalo assisted in strapping approximately four kilograms of cocaine each to Duggan, Mitrou and Barnes (for a total of 12 kilograms) which was successfully smuggled into Australia.

The court sentenced Duggan and Mitrou on February 10, 1998, and imposed, after granting the government's motion for a downward departure for substantial assistance, a term of 24 months imprisonment and five years supervised release. These sentences amounted to time served. By order of June 29, 2000, the court sentenced Sanderson to 51 months imprisonment on each of three counts to run concurrently, see United States v. Sanderson, 110 F. Supp.2d 1221 (N.D.Cal. 2000); the term amounted to time served and Sanderson has since been released and returned to Australia.

On August 1, 2000, the court heard argument on Basalo's sentencing, gave the defendant his right of alocution and took the matter under submission.


Pursuant to 18 U.S.C. § 3553(a)(4), the court must establish a sentencing range by reference to the United States Sentencing Commission guidelines.


Under 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 under USSG § 2D1.1(a)(3) by reference to the aggregated quantity of: (1) the controlled substance involved in the charged offense and (2) any controlled substances relating to relevant conduct within the meaning of USSG § 1B1.3(2).

The court finds that the government has established, by a preponderance of the evidence, that the quantity of cocaine upon which the base offense level must be determined is approximately 20 kilograms, comprising 7.9 kilograms from the February 1996 smuggling attempt and approximately 12 kilograms from the December 1995 effort. Basalo has admitted in a post-trial debriefing that these quantities are accurate. The base offense level, therefore, pursuant to the drug quantity table of USSG § 2D1.1(c), is 34.

The parties agree that Basalo has no known prior convictions in the United States or Australia and therefore falls within criminal history category I. See USSG § 4A1.1.


The so-called "safety valve" provision of 18 U.S.C. § 3553(f) is relevant to Basalo's sentence in three important respects. First, if Basalo meets the safety valve criteria, the statutory minimum sentence of ten years, see 21 U.S.C. § 841(b)(1)(A), does not apply. 18 U.S.C. § 3553(f). Second, according to the specific offense characteristic adjustments of USSG § 2D1.1(b), Basalo would be entitled to a two-point downward adjustment to the base offense level. See USSG § 2D1.1(b)(4). Finally, one safety valve factor — whether the defendant is an organizer, leader, manager or supervisor in the offense — mirrors the inquiry for a sentence adjustment under the guidelines for aggravating role. See USSG § 3B1.1. The government seeks a four-level upward adjustment to the offense level pursuant to this provision.

There are five safety valve factors, and no dispute on four of them: Basalo does not have more than one criminal history point; he did not use violence or a firearm in connection with the offenses; the offenses did not result in death or ...

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