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 serious injury;
Basalo has been debriefed by the government.
A fifth factor, however, concerning Basalo's role in the
conspiracy, is a key point of contention. The government argues
that Basalo was an "organizer or leader of a criminal activity
that involved five or more participants" and therefore ineligible
for safety valve protection and subject to a four-level upward
adjustment. The government bases this argument on evidence at
trial that Basalo relayed instructions from superiors in
Australia to other conspiracy participants in San Francisco.
According to the government, Basalo "clearly fell within the
middle of the conspiracy's hierarchy", Gov Sent Mem at 3, and
insofar as he directed the activity of other conspirators must be
considered an organizer or leader.
Basalo admits that his role was "important, essential and
different from some of the other defendants to appear before the
Court," Def Reply Mem at 3, but maintains that his activity does
not make him a organizer, leader, manager or supervisor of the
conspiracy. At oral argument, counsel articulated Basalo's
position this way: "Simply because it is his job to call back to
Australia every single day to get the instructions for the group
does not make him the supervisor or the leader. It makes him the
AT & T operator here." Trans of Aug 1, 2000, hearing at 12-13.
The sentencing guidelines direct the court to consider the
following factors in determining whether a defendant was an
organizer or leader: the exercise of decisionmaking authority;
the nature of the offense and the defendant's participation in
the offense; the recruitment of accomplices; the claimed right to
a larger share of the fruits of the crime and the degree of
control and authority exercised over others. USSG § 3B1.1,
comment. (n. 4); United States v. Ponce, 51 F.3d 820, 827 (9th
Cir. 1995). Upon consideration of these factors in light of the
evidence, the court concludes that Basalo was not an organizer,
leader, manager or supervisor within the meaning of USSG § 3B1.1
and 18 U.S.C. § 3553(f)(4).
Basalo exercised no decisionmaking authority; to the contrary,
the evidence indicates that his role was to take orders, not make
them. That he relayed those orders to others does not make Basalo
a decisionmaker. Nor has the government presented evidence that
Basalo recruited accomplices or claimed a greater share of
profits from the smuggling operation. The evidence indicates that
conspirators were recruited in Australia by others. Basalo's
statement that he did not receive a larger share of profits is
unrebutted. While Basalo did coordinate the activities of other
conspirators to the extent necessary to carry out specific
instructions from Australia, the evidence does not support a
conclusion that he exercised any degree of authority or control.
See United States v. Lopez-Sandoval, 146 F.3d 712, 716-718 (9th
Cir. 1998) (defendant who acted as translator and relayed
information about time and place of drug transactions and perhaps
price of drugs not organizer, leader, manager or supervisor).
In sentencing Sanderson, the court characterized Basalo as a
"point man." This he was, in the sense of one acting as a conduit
of information from superiors. But he possessed no more authority
in the operation of the conspiracy than the other defendants who
have been before the court.
The government proceeds on the theory that, among those who
came to the United States to do the legwork of this smuggling
operation, there must have been at least one organizer or leader.
But this does not comport with the evidence or the court's
understanding of the workings of this and other drug smuggling
Just as a district court, "informed by its vantage point and
day-to-day experience in criminal sentencing," has an
"institutional advantage" in assessing the grounds for a
departure under the guidelines, Koon v. United States,
518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), so too should a
district court draw upon such experience in making role in the
offense adjustments. As the undersigned has observed in more than
10 years of trying drug trafficking cases, the leaders of drug
rings follow the self-serving practice of staying off the front
lines. It is therefore not surprising that those ensnared in this
case were all pawns. Basalo may have been the first among pawns,
but in this sorry game he was no knight, bishop or rook, much
less a king.
While Basalo's conduct precludes a finding that he played a
mitigating role in the offense (as the court found with respect
to Sanderson), it does not, for the reasons stated, support an
adjustment for an aggravating role under USSG § 3B1.1. The court
also concludes that the safety valve criteria are met in this
case. The offense level therefore drops to 32 and, under
18 U.S.C. § 3555(f) and USSG § 5C1.2, the statutory mandatory minimum
sentence does not apply.
The government asserts that Basalo 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 Basalo's alleged perjury at trial. Perjury is an
enumerated example of obstruction to which the guideline applies.
USSG § 3C1.1, comment., (n. 4(b)). Basalo concedes that he lied
on the stand, but argues that his conduct was not willful because
his former attorney instructed him to lie. Even if true, advice
of counsel does not excuse Basalo's conduct. Basalo possessed the
intent to provide false testimony and did so on a material
matter, which is what the law forbids. United States v.
Based on the foregoing, the court concludes that the total
offense level is 34 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 151-188 months imprisonment.
The remaining issue is whether grounds exist, as Basalo 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 as follows:
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. A departure from the guideline range
is, at bottom, an exercise of the trial court's traditional
latitude in sentencing in the interest of fairness. Promulgation
of the sentencing guidelines did not make federal sentencing an
entirely mechanical process (although it went a long way in that
direction). As the Ninth Circuit has noted, however, departures
are by definition reserved for the most unusual cases and should
be "highly infrequent." United States v. Banuelos-Rodriguez,